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Author: Larry Helfer

[Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University and a permanent visiting professor at iCourts: Center of Excellence for International Courts at the University of Copenhagen.]
As the world reacts to the shock of the Brexit referendum, international lawyers are turning their attention to the mechanics of Britain’s departure from the EU. Article 50 of...

[Larry Helfer is the Harry R. Chadwick, Sr. Professor of Law Professor of Law at Duke University School of Law]
I am delighted to participate in this Opinio Juris book symposium on Jeff Dunoff and Mark Pollack’s excellent edited volume. My chapter on “Flexibility in International Agreements” was improved by their many helpful comments and suggestions. This brief post summarizes a few of the chapter’s major themes. Citations to all references can be found in the online and print versions of the chapter.
Government officials, international lawyers, and diplomats have long been interested in shaping the form and content of treaties to manage the risks of international cooperation. These actors have responded to these risks with an diverse array of flexibility mechanisms, including unilateral reservation and declaration clauses; entry-into-force requirements; limitations on territorial application; duration provisions; amendment and revision procedures; and rules governing suspension, withdrawal, and termination.
In addition to these formal mechanisms, a range of informal practices can enhance the flexibility of treaties. Such practices include ad hoc supplementary accords, understandings, traditions, conventions, gentleman’s agreements, de facto modification of treaty obligations through conduct, auto-interpretation of ambiguous terms, and nonparticipation in treaty activities.
A principal challenge facing treaty negotiators is to select an appropriately constrained suite of flexibility mechanisms that facilitate agreement among states ex ante while deterring opportunistic uses of those mechanisms ex post after the treaty enters into force. Flexibility tools that are too easy to invoke will encourage self-serving behavior and lead to a breakdown in cooperation. Tools that are too onerous will discourage such behavior, but may prevent the parties from reaching agreement in the first instance, or, if agreement is reached, may lead to widespread violations if the costs of compliance increase unexpectedly.
Over the last decade, international law and international relations scholars have devoted growing attention to treaty flexibility tools.

[Larry Helfer is the Harry R. Chadwick, Sr. Professor of Law Professor of Law at Duke University School of Law]

Katerina Linos has written an audacious and analytically rigorous study of how health and family policies spread over time across industrialized countries. She deftly synthesizes a broad range of qualitative and quantitative research methods into a brilliantly-conceived research design that analyzes the mechanisms by which such policies disperse across borders. The book’s core findings—that foreign and international models influence domestic policy adoption via politicians’ appeals to skeptical voters who view such models favorably—are highly counterintuitive. The findings are at odds with the existing literature on policy diffusion, which identifies networks of experts and elites as the primary transmission mechanisms. They are also contrary to the conventional wisdom that resistance to foreign and international policies is especially strong in the United States, where voters are thought to be unaware of such exemplars or mistrustful of those they have encountered.

My comments focus on chapters 3 and 4 of the book, which consider, respectively, how Americans view foreign models and how national health services have diffused across OECD member states. Linos labels the first question as a “hard test case” for her theory (p.36), for the reasons just noted. To search for evidence that U.S. voters and politicians are swayed by foreign policies, she conducts public opinion experiments and codes Congressional debates leading to the adoption of the 2010 Affordable Care Act and the 1993 Family Medical Leave Act. The experiments suggest that Americans are much more likely to favor publicly-funded health insurance and maternity leave if such policies have previously been adopted by most Western countries or endorsed by the United Nations. Linos also finds that members of Congress reference the health and family policies of rich, proximate and familiar nations rather than countries that experts view as the most relevant to the United States.

Chapter 4 makes the more modest claim that the national health systems (NHS) of foreign countries with the characteristics identified above (and, to a much lesser degree, nonbinding international norms endorsing universal primary healthcare) explain the spread of health policies among industrialized countries. Here Linos builds upon an existing literature that identifies facilitating conditions for the adoption of NHS, but that has yet to explain the timing and geographic spread of those policies. Chapter 4’s conclusions, although more nuanced than those of chapter 3, provide additional evidence to support Linos’ theory of democratic diffusion.

I have two sets of comments and questions about Linos’ arguments and findings in these chapters.

Thanks to Opinio Juris for inviting me to comment on Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department, Professor Ingrid Wuerth’s timely and insightful article. The springboard for the article is Samantar v. Yousuf, the 2010 U.S. Supreme Court decision which held that the Foreign Sovereign Immunities Act (FSIA) does not apply to individual government...

Thanks to Opinio Juris for inviting me to comment on Jacob Cogan’s interesting and thought-provoking paper, Competition and Control in International Adjudication. Jacob’s essay correctly recognizes that a system of controls is essential to the successful operation of the international legal system in general and international tribunals in particular. Controls are necessary, Jacob persuasively argues, because the states...

It is by now old news that litigation above the level of the nation state has expanded exponentially over the last fifteen years. This expansion appears in three distinct forms. First, states have established more than a dozen new international courts and tribunals during that time period. Second, states are recognizing the jurisdiction of new and existing...